Molloy and Foust & Anor - [2024] FCWA 236

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MOLLOY and FOUST & ANOR [2024] FCWA 236
CORAM: BERRY J
HEARD: [REDACTED]
DELIVERED : 17 OCTOBER 2024
FILE NO/S: 2835 of 2016
BETWEEN: MS MOLLOY
Applicant
AND
MR FOUST
First Respondent
MR GALLO
Fourth Respondent

Catchwords:

FINANCIAL - Application by the wife seeking orders for property settlement against the husband - Application opposed by the husband - Where orders are made at the commencement of trial removing the Fifth and Sixth Respondents from the proceedings - Where the husband and the Fourth Respondent were not legally represented - Where there is one child of the marriage and the wife has a child of a previous marriage who are both adults - Where the husband became the sole registered proprietor of the former matrimonial home prior to the commencement of cohabitation - Where the wife and the child moved out of the former matrimonial home upon separation - Where the husband sold the former matrimonial home in contravention of Court orders made in 2016 and another property registered in his name to the Fourth Respondent in contravention of Court orders made in 2019 - Where the husband was found guilty of contempt of Court and imprisoned for a period of 18 months - Where the husband did not seek to purge his contempt while serving his sentence - Where the marital parties executed a Deed of Settlement and Release arising out of a further contempt application filed by the wife in October 2020 - Where the husband denies having any remnant of the sale proceeds of the former matrimonial home in his possession or control and asserts that he used the funds to pay off debts that he incurred while gambling with an underground syndicate in 2019 - Where the Court is satisfied that the husband retains at least a portion of the funds and treats the balance as a premature distribution of property in favour of the husband - Where the Court is satisfied that the Deed entered into by the husband and the Fourth Respondent in relation to the sale of the other property is a sham - Where the Court is satisfied that each marital party made equal contributions and it is just and equitable to make orders dividing their notional and actual asset pool equally - Orders made - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Town Planning and Development Act 1928 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr R Bannerman
First Respondent	:	Self Represented Litigant
Fourth Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Bannerman Solicitors
First Respondent	:	Self Represented Litigant
Fourth Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Alexander v Manly (2004) 29 WAR 194
Barnell & Barnell (2020) FLC 93-961
Benson & Drury (2020) FLC 93-998
Boulton & Boulton [2024] FedCFamC1A 132
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FCWA 236
Decision Date: 17 OCTOBER 2024

CaseChat Overview and Summary

The wife, Molloy, sought property settlement orders against her husband, Foust, who opposed the application. The matter was before the Family Court of Australia. The primary issue before the court was whether the wife was entitled to an equal division of the assets accumulated during the marriage, despite the husband's prior breach of court orders and his denial of holding any remnant of the sale proceeds from the former matrimonial home.

The court found that the husband had contravened court orders by selling the former matrimonial home and transferring another property to the Fourth Respondent. Despite the husband's imprisonment for contempt, he did not seek to purge his contempt while serving his sentence. The court concluded that the husband still possessed some of the sale proceeds, treating the balance as a premature distribution in his favour. Additionally, the court deemed the Deed of Settlement and Release between the husband and the Fourth Respondent as a sham. Given that the marital parties made equal contributions and that it was just and equitable to divide their notional and actual asset pool equally, the court ordered an equal distribution of the assets.

In light of the above findings, the court made orders dividing the notional and actual asset pool equally between the wife and the husband, subject to further orders regarding the specific distribution of assets. The court emphasised that the case hinged on its unique circumstances, providing a comprehensive analysis of the husband's conduct, the financial contributions of both parties, and the fairness of an equal division of the assets.

Orders